Court grants one new case (with no cakes, guns or cell phones involved)

Posted Tue, May 30th, 2017 2:58 pm by Amy Howe

Today the Supreme Court added one new case to its docket for the fall, a challenge to Ohio’s efforts to keep its voter registration lists up to date. But for the 11th conference in a row, the justices did not act on a Colorado baker’s First Amendment challenge to the state’s public accommodations law. Other closely watched cases, involving (among other things) gun rights and the use of historical cell-phone data, also did not appear on today’s order list and are apparently slated to make yet another appearance at this Thursday’s private conference.

Today’s lone grant came in Husted v. A. Phillip Randolph Institute, in which the court will weigh in on the interplay between federal voting laws and states’ efforts to maintain voter registration lists. When a registered voter in Ohio does not vote during a two-year period, the state sends her a confirmation notice. If the voter does not respond to that notice and does not vote over the next four years, Ohio removes her from the list of registered voters and requires her to register again. APRI, a labor and civil rights group, filed this lawsuit against Ohio’s secretary of state, alleging that this process violates the National Voter Registration Act of 1993, which bars states from removing someone from the voter registration list for not voting and sets out a process for states to remove voters who have moved away.

A federal district court ruled for the state, but the U.S. Court of Appeals for the 6th Circuit reversed. It concluded that, although federal law allows Ohio to remove voters who did not either respond to the confirmation notice or vote in two elections, the state’s process uses the failure to vote as a “trigger” for initiating removal – which, the court emphasized, federal law does not authorize.

Ohio then asked the justices to review the case, arguing that the 6th Circuit’s decision “makes it harder for States to conduct what all can agree is a critical activity—removing ineligible voters from registration lists—by eliminating one method for doing so.” Moreover, it added, the ruling below left Ohio subject to conflicting obligations: States (including Ohio), it noted, have been sued for not maintaining their voter registration lists sufficiently, while here Ohio has been sued for attempting to maintain its lists. At least four justices must have agreed, as the court was persuaded to decide this question even in the apparent absence of any division among the lower courts, a traditional hallmark of many of the cases that the justices review.

The justices also called for the views of the federal government in WesternGeco LLC v. Ion Geophysical Corporation, a patent case. The case combines two often-recurring topics at the court: damages for patent infringement and the extent to which U.S. law applies outside the United States. Federal law bars the export of parts of a patented invention from the United States if they will be put together outside the U.S. in a way that would constitute patent infringement in the U.S. The question on which the federal government has been asked to weigh in is whether someone who violates this ban must compensate the patent owner in full for his lost profits, as WesternGeco argues, or whether lost profits are instead not available for the products that are combined outside the United States. There is no deadline for the federal government to file its brief.

The justices did not act, however, on some of the highest-profile cases on their certiorari docket. One of those cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission, will apparently be relisted for the 11th time. The petitioner in the case is the custom-cake business owned by Jack Phillips, who describes himself as a “cake artist”; he argues that Colorado’s public accommodations law violates the First Amendment by requiring Phillips to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. In 2014, the justices considered a similar case, filed by a photographer in New Mexico, at three conferences before denying review without comment.

Peruta v. California, in which the justices have been asked to decide whether there is a Second Amendment right to carry handgun outside the home for self-defense, is apparently headed for its fourth relist, while another gun rights case — in which the federal government has urged the justices to weigh in on whether a federal law banning the possession of guns by convicted felons violates the Second Amendment as applied to two men, Daniel Binderup and Julio Suarez – seems to be slated for a third relist. And the justices once again did not act on a group of cases challenging the use of historical cell-phone data by law enforcement officials without a warrant.

Major Cases

Trump v. Hawaii(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of October 27, 2017

Opalinski v. Robert Half International, Inc. Whether, where an arbitration agreement does not expressly refer to class arbitration, the determination of whether class arbitration is permitted by the agreement is a question of arbitrability for the court to decide or a question of interpretation and procedure for the arbitrator to decide.

S.S. v. Colorado River Indian Tribes (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1912(d) and 1912(f), applies in a private severance action initiated by one birth parent against the other birth parent of an Indian child; and (2) whether, if the sections apply in such an action, this de jure discrimination and separate-and-substandard treatment of Indian children violate the due process and equal protection guarantees of the Fifth and Fourteenth Amendments.

Scott v. Maryland State Department of Labor Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process even without a showing of good cause, as the U.S. Court of Appeals for the 2d, 3d, 5th, 7th, 8th, 9th, 10th, 11th, and D.C. Circuits have held, and as the Supreme Court has interpreted, or whether the district court lacks such discretion, as the U.S. Court of Appeals for the 4th Circuit has squarely held and as the U.S. Court of Appeals for the 6th Circuit has repeatedly suggested.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.